Citation Nr: 22019801 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 12-21 622 DATE: April 3, 2022 ORDER Entitlement to a 100 percent evaluation for posttraumatic stress disorder (PTSD) with major depressive disorder prior to September 11, 2019, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's PTSD with major depressive disorder has more nearly approximated total occupational and social impairment. 2. The Veteran has been assigned a 100 percent evaluation for PTSD with major depressive disorder throughout the appeal period, and he does not have any other service-connected disability rated at 60 percent or higher. A single service-connected disability other than PTSD with major depressive disorder does not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to September 11, 2019, the criteria for a 100 percent evaluation for PTSD with major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1- 4.14, 4.126, 4.130, Diagnostic Code 9411. 2. The criteria for TDIU have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16; Bradley v. Peake, 22 Vet. App. 280, 293 (2008); Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1968 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2013. A transcript of that hearing has been associated with the claims file. In November 2013 and September 2018, the Board remanded the case for further development. That development was completed, and the case has since been returned to the Board for appellate review. During the pendency of the appeal, in a July 2020 rating decision, the agency of original jurisdiction (AOJ) increased the evaluation for the Veteran's PTSD with major depressive disorder to 100 percent disabling effective from September 11, 2019. Nevertheless, the issue remains in appellate status, as the maximum schedular rating has not been assigned for the entire period on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Thus, the issue has been recharacterized. Increased Evaluation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, 37312 (Fed. Cir. Dec. 17, 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). The Veteran's PTSD is currently assigned a 30 percent evaluation prior to October 19, 2015, and a 50 percent evaluation for the period from October 19, 2015, to September 11, 2019, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411. Under Diagnostic Code 9411, a 30 percent evaluation is assigned for occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted when the psychiatric disorder results in reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted when the psychiatric disorder results in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted when the psychiatric disorder results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). At the outset, the Board acknowledges that, in addition to his PTSD with major depressive disorder, the record reflects that the Veteran has been diagnosed with an alcohol use disorder, which is not service-connected. However, where the record does not separate the effects of a service-connected disability from the effects of a non-service-connected disability, the effects must be attributed to the service-connected disability or a medical determination must be obtained. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 38 C.F.R. § 3.102; Schedule for Rating Disabilities, Mental Disorders, 61 Fed. Reg. 52,695, 52,698 (Oct. 8, 1996)). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to a 100 percent evaluation for PTSD with major depressive disorder prior to September 11, 2019. VA treatment records, the September 2010, September 2014, November 2015 VA examination reports, and the Veteran's lay statements show that his PTSD with major depressive disorder was manifested by some symptoms associated with a 70 percent rating (e.g., suicidal ideation, impaired impulse control, inability to establish and maintain effective relationships, difficulty in adapting to stressful circumstances), and some symptoms associated with a 100 percent rating (e.g., auditory and visual hallucinations and homicidal ideation). The Veteran also had symptoms that are not listed with a specific rating, such as fatigability, self-isolating behavior, hypervigilance, flashbacks, poor concentration, and easy startling. The Board notes that the Veteran expressed suicidal ideation on numerous occasions. See, e.g., VA treatment records dated in October 2011 (reporting intermittent suicidal ideation), February 2012 (noting "fleeting" suicidal ideation without a trigger), April 2013 (admitting ongoing suicidal ideation without intent or plan), January 2014 (reporting fleeting passive suicidal ideation when stressed by his father's recent worsening health condition), August 2014 (reporting "fleeting" suicidal ideation and noting that his weapons are being kept by his sister), July 2015 (noting fleeting suicidal ideation without intent or plan), July 2016 (reporting passive suicidal ideation and negative thoughts), and August 2017 (denying current suicidal ideation although he has had passive thoughts in the past). In addition, the Veteran endorsed homicidal ideation and thoughts of harming others. See, e.g., VA treatment records dated in February 2012 (reporting fleeting homicidal ideation without a trigger), April 2013 (admits fleeting homicidal ideation, but denies he would act on the impulses); August 2014 (reporting fleeting homicidal ideation); February 2013 Board hearing transcript at 12-13 (stating that he has intrusive thoughts about harming other people). The Veteran also reported experiencing occasional hallucinations. See, e.g., VA treatment records dated in April 2013 (reporting auditory hallucinations); August 2013 (reporting intermittent auditory hallucinations), August 2014 (stating he has hallucinations/flashbacks triggered by the smell of tar);, April 2015 (stating he has auditory hallucinations and visual hallucinations of snakes when he misses a dose of sertraline), February 2017 (noting that he reports hallucinations, and a review of his chart indicates that he has had visual hallucinations and some auditory hallucinations for years). In addition, the Board acknowledges that the Veteran consistently reported symptoms such as frequent nightmares, fatigue, irritability, road rage, isolation, poor concentration, depression, anxiety, and panic attacks. The record further indicates that he self-medicates by binge drinking. The August 2014 VA examiner found that his alcohol use disorder is a separate condition and not a progression of his PTSD; however, the VA treatment records indicate that it is a symptom of his PTSD. Moreover, the evidence shows that the Veteran has total occupational impairment as a result of his service-connected PTSD with major depressive disorder. During the February 2013 hearing, the Veteran testified that he had to quit a contracting job because he got into arguments with customers and could not deal with the stress. He also stated that he was fired from another job after getting into an altercation with an assistant coach. Indeed, vocational rehabilitation records from December 2008 confirm the Veteran's report that he quit contracting work after getting into arguments with customers. He reported that he had difficulty maintaining good relationships with clients because of his explosive temper related to PTSD. He further stated that he walked away from jobs because of it. See February 2009 Initial Evaluation Report; January 2009 VA treatment record (noting his report that he cannot continue contracting work because he gets into too many arguments and has road rage approximately twice per month and occasional suicidal ideation). The September 2010 VA examiner also noted that the Veteran was an independent contractor until approximately three years earlier, but that he gave up his license in the last year because he had so many confrontations with his subcontractors. In February 2012, the Veteran indicated that he was able to continue coaching, but unable to do any other work. April 2013 VA treatment records also document that he was removed from his volunteer coaching position after an altercation, and the Veteran continued to endorse violent thoughts and ongoing suicidal ideation. In July 2016, he stated that he cannot work anymore and does not want to be a volunteer coach. A January 2021 VA examiner later noted that the Veteran has been unemployed since 2010. It was noted that he was a coach at the local high school, but he stated that the athletic director forced him out. He had also previously worked as a contractor, but stopped working due to irritability, an explosive temper, and a low mood that negatively impacted his work each day. The examiner determined that the Veteran's severe anxiety and depressive symptoms, including impaired concentration, irritability, fatigability, edginess and restlessness, and difficulty sleeping, would negatively impact his ability to interact in an effective manner in a work environment. Although this examination was performed after the appeal period, the Board notes that the examiner considered the Veteran's work history prior to that time and that the symptoms discussed were present prior to September 11, 2019. Based on the foregoing and resolving any reasonable doubt in favor of the Veteran, the Board finds that he more nearly approximates the criteria for a 100 percent evaluation, particularly given his suicidal and homicidal ideation, auditory and visual hallucinations, social isolation, and total occupational impairment. Accordingly, the Board concludes that a 100 percent evaluation is warranted for the Veteran's service-connected PTSD with major depressive disorder prior to September 11, 2019. TDIU In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability, separately rated at 60 percent or more, could warrant special monthly compensation under 38 U.S.C. § 1114 (s). Thus, it might be of benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted, as a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC). See also Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). In this case, the Veteran has been assigned a 100 percent evaluation for his service-connected PTSD with major depressive disorder throughout the appeal period, and he does not have any other service-connected disability rated at 60 percent or higher prior to that date. Therefore, the only avenue for further benefit to the Veteran would be entitlement to SMC by meeting the criteria for TDIU based on another service-connected disability. Thus, the crux of this case is whether the Veteran has a single service-connected disability other than PTSD with major depressive disorder that rendered him unable to secure and follow a substantially gainful occupation. The Veteran has not asserted that he is unable to work due to a single disability other than PTSD with major depressive disorder. Rather, as discussed above, he has asserted that he was unemployable due his PTSD and major depressive disorder. See also September 2020 VA Form 21-8940 (identifies PTSD as the disability that prevented him from securing or following any substantially gainful occupation). Notably, the Veteran has not asserted that he is unemployable due to his service-connected bilateral hearing loss or tinnitus alone. Thus, the medical and lay evidence shows that the Veteran is unemployable due to his service-connected PTSD with major depressive disorder, and he is already in receipt of a 100 percent evaluation for that disability. Accordingly, the Board finds that the Veteran is not entitled to TDIU. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.